In recent years, at least 20 states have either amended existing anti-bullying and school safety laws to include language prohibiting bullying via electronic means, or have created separate statutes focusing on cyberbullying.
Definitions of cyberbullying vary in the scope of behavior they cover. Some state statutes and school codes describe it as a type of criminal harassment or stalking. Others distinguish cyberbullying from criminal harassment, using the term to describe milder forms of online bullying. And, finally, there are codes that use cyberbullying as a term encompassing everything from mildly aggressive conduct online to actual criminal harassment (i.e. willful, malicious and repeated acts directed at a specific person committed over a period of time and causing this person to suffer substantial emotional distress and physical fear).
Protecting kids from potentially devastating personal attacks is certainly a laudable goal, especially when it comes to those who are particularly vulnerable to harassment, such as lesbian, gay, bisexual or transgender teens. But some of these laws focus more on draconian, zero-tolerance policies that punish speech rather than promote education and guidance that can help prevent bad behavior to begin with. The problem is further compounded when officials attempt to punish students for behavior that occurs outside school grounds. And in many cases, the laws are so broad and vague that they could run afoul of the First Amendment. For instance, a law introduced earlier this year in the New York State Assembly criminalizes “abusive behavior,” which includes “taunting; threatening; intimidating; insulting; tormenting; humiliating,” all of which can be subjectively interpreted. Violators would face an “unclassified misdemeanor by a fine of up to one thousand dollars and/or up to one year imprisonment.”
In our review of more than 50 cyberbullying policies from schools all over the country, we’ve found that the most free-speech friendly policies address cyberbullying through education. NCAC supports policies that seek educational means to deal with problems arising from students’ use of new technologies and which recognize students’ First Amendment rights.
Instead of creating criminal laws that restrict student speech and are unlikely to hold up in court, legislators need to ensure that schools are addressing all forms of bullying (both online and offline) and educators need to vigorously enforce laws already on the books that could address some of the more egregious situations, such as anti-stalking and cyber-harassment laws. Schools should also offer training and advice to parents and guardians so that the process of education continues at home.
Put simply, cyberbullying is the 21st century version of a very long-standing and troubling problem and should be addressed accordingly: as part of educators’ mission to guide students in civil behavior. Schools have a long tradition of providing students with guidance on how to function in a civilized society; they should continue that tradition by teaching students how to make wise decisions online.
— Joan Bertin